Garney v. Department of Labor & Industries

In my opinion, the majority has misconceived the purpose of our state industrial insurance act, and has likewise misconstrued the self-evident purpose of the several counties in distributing relief to worthy citizens who are in distress in the form described as "made work," "emergency relief work," or by similar terms.

The whole intent and purpose of our state industrial insurance legislation is to compel industry, as a part of the expense of production, to bear the burdens growing out of the hazards of those employed therein productively; no more and no less. To extend the purposes beyond that, and make of the industrial insurance law a general life and accident insurance, will inevitably tend to destroy the law, or to destroy industry, or both. Believing in such industrial insurance, and desiring to preserve the benefits of our act for those for whom they are intended, I strongly object to its perversion.

Quite naturally and logically, we should hold, under the facts of this particular case, that the respondent was employed to do the regular road work of the county which it would have to perform in any event, even though there were none seeking relief, and if respondent was actually so employed, it is quite immaterial how or out of what fund he was paid. But beyond that, there is no occasion to go; and even if the question were here, we should not adopt the broad rule announced by the majority, which is in direct opposition to the overwhelming weight of American authority.

Upon questions of common law, English authority is often helpful; but in construing or applying a statute which abrogates the common law, the English decisions based upon local laws which establish a dole and the like are not only not helpful, but because of dissimilarity of conditions may be positively harmful.

By our statute law, the counties are made the sole governmental agency to which the indigent may apply for relief; and whatever the duties of the state may be, the state has directed the counties to act in all matters relating to the relief of the indigent within their respective jurisdictions. True, the statute does not in terms direct the counties to provide relief work as a means of distributing relief, nor, on the other hand, do I find any statute which forbids the counties the right to require those who are able to so perform a reasonable amount of work in return for relief given. For many years, our county poor farms have been conducted upon that principle; and so far as I am aware, no one has questioned the right of the county officials to require inmates of such institutions to perform such work and render such service as they reasonably may in return for the benefits received. Nor have I yet heard it argued that inmates of such institutions become county employees within the meaning of the industrial insurance act.

Work which is provided for the purpose of distributing relief, by whatever name it is called, is, in fact and in law, charity, and it is nothing else. An incidental return in the nature of labor or services, wisely provided for in order to remove the stigma of pauperism and to preserve the self-respect of the recipient, does not change the character of the transaction. Such is the almost unanimous holding of the American courts.

In Vaivida v. Grand Rapids, 264 Mich. 204, 249 N.W. 826, the supreme court of Michigan said:

"Citizens needing public aid are in a sense wards of the municipality required to support them, and, if the able among them are set at work at common and unremunerative public tasks, there does not arise a contract of hire or the relation of employer and employee, but only a helping hand in behalf of public charity invoked and extended."

In Jackson v. North Carolina Emergency ReliefAdministration, 206 N.C. 274, 173 S.E. 580, the supreme court of North Carolina said:

"The word `employee,' as used in the North Carolina Workmen's Compensation Act, means, `every person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written.' Public Laws of N.C. 1929, chapter 120, Sec. 2, par. (b) N.C. Code of 1931, sec. 8081 (i) (b). Plaintiff was not an employee; he was a `relief worker.' He was not employed by the defendants or either of them; he was provided with work, because of his need of means of support for himself and his family. The money paid to him each week was not paid as remuneration for his work, but was paid for the relief of himself and his family. See Basham v. County Court of Kanawha County (W.Va.) 171 S.E. 893. The judgment is affirmed."

In State ex rel. State Board of Charities and Public Welfarev. Nevada Industrial Commission, 34 P.2d (Nev.) 408, the supreme court of Nevada said:

"In short, the court is of the opinion that such workmen are not employed by the state, the counties, the school districts, or the municipal corporations of the state, but are provided with work because of the need of means of support for themselves and their families. The money paid them is not paid as a contractual remuneration for their work, but is paid for the relief of themselves and their families. Consequently, whatever else should be done for the relief of unemployment, it is manifest that the terms, conditions, and provisions of the Nevada Industrial Insurance Act cannot be converted into something in the nature of an unemployment insurance benefit for the relief of the unemployed of this state."

To the same effect see: In re Moore, 97 Ind. App. 492,187 N.E. 219; Davenport v. Detroit, 268 Mich. 374, 256 N.W. 354;McBurney v. Industrial Accident Commission of California,220 Cal. 124, 30 P.2d 414; Rico v. Industrial AccidentCommission, 137 Cal.App. 772, 30 P.2d 584; Los AngelesCounty v. Industrial Accident Commission of California, 140 Cal.App. 727, 35 P.2d 1035; Waycross v. Hayes, 48 Ga. App. 317,172 S.E. 756; West Milwaukee v. Industrial Commission, 255 N.W. (Wis.) 728.

In Thurston County Chapter, American Red Cross v. Departmentof Labor and Industries, 166 Wn. 488, 7 P.2d 577, we held that charitable organizations are not within the operation of the workmen's compensation act. Applying the same principle here, it would appear that the county, while distributing relief to the indigent, is as much a charitable or benevolent organization as any private institution possibly can be. The counties are providing the relief which the statute law compels them to provide; and though they may do so through the medium of "made work," still they are engaged wholly in distributing charity, and while so engaged they are not under the industrial insurance act.

For these reasons, I cannot concur in the broad rule laid down by the majority, though I do agree that respondent in this case was hired by the county to do regular road work. Therefore, he became an employee of the county and came under the act, the mere fact that he was paid from the indigent relief fund being immaterial if his employment was otherwise regular.

I therefore concur with the majority only in the result.

BEALS and STEINERT, JJ., concur with TOLMAN, J.